Category Archives: Centers for Medicare & Medicaid Services (“CMS”)

OIG Report Shows Many Incidents of Potential Abuse or Neglect Unreported in SNFs

The U. S. Department of Health and Human Services (HHS), Office of Inspector General (OIG) recently published an Early Alert report regarding the preliminary results of an ongoing study of potential abuse or neglect in Medicare-certified Skilled Nursing Facilities (SNFs). In the report dated August 24, 2017, the OIG determined that the Centers for Medicare & Medicaid Services (CMS) has inadequate procedures to ensure that incidents of potential abuse or neglect of Medicare beneficiaries residing in SNFs are properly identified and reported. The OIG audit is continuing, but the preliminary results were issued because of the importance of detecting and combating elder abuse. Continue reading

Additional Challenges for Off-Campus Provider-Based Hospital Departments

Proposed Reduction of Payment Rates for Non-excepted Off-campus Provider-Based Hospital Departments Paid Under the Medicare Physician Fee Schedule

Medical facilities owned by hospitals but located off-campus are facing new challenges on both the state and federal levels. CMS recently proposed a rule updating certain payment policies and rates for the Medicare Physician Fee Schedule (Proposed Rule). Among other provisions, the Proposed Rule slashes payment rates for non-excepted off-campus provider-based hospital departments that are now paid according to the Medicare Physician Fee Schedule. The Proposed Rule will be published in the Federal Register on July 21, 2017; the comment period will close on Sept. 11, 2017. Continue reading

Conducting Required Reviews Can Save Your Facility from Embarrassment – and Worse!

Even though we know the old saying “an ounce of prevention is worth a pound of cure,” background checks on on personnel can sometimes fall through the cracks. Here are a few examples of times that make us wish we would have double-checked to be sure they were getting done:

  • A state surveyor is on-site investigating and advises that the allegation of neglect or abuse is against a tech who was convicted for beating up his father a year before he was hired.
  • In employing a favorite PRN nurse who has been around for a couple of years, you learn that she never obtained a license when she moved here from Texas. You realize there may now be returnable overpayments, because she is not appropriately licensed to perform the services in our state.
  • You want to impress your new venture partner, and cringe when they discover in due diligence that your team has not checked the excluded provider or debarred contractor lists in a few years.

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CMS Urged to Recoup and Audit EHR Incentive Payments

According to a report released by the U.S. Department of Health and Human Services’ Office of Inspector General (OIG) on June 12, 2017, the Centers for Medicare and Medicaid Services (CMS) overpaid an estimated $729 million in Medicare electronic health record (EHR) incentive payments to participating providers. (The full report is available at The OIG reviewed whether CMS’ oversight of the Medicare EHR incentive program was sufficient and whether eligible professionals (EPs) nationwide met Medicare incentive payment program requirements and received appropriate incentive payments. Alarmingly, the OIG urged CMS to recoup and audit these incentive payments based on its findings. Participating EPs and hospitals should be cognizant of the ramifications of CMS’ recommendations, including the potential for an audit and recoupment. Continue reading

CMS Releases Final Medicare Outpatient Observation Notice

The Centers for Medicare & Medicaid Services (“CMS”) posted the final approved version of the Medicare Outpatient Observation Notice (“MOON”) on the CMS Beneficiary Notices Initiative website on December 8, 2016.[1]  According to CMS, all hospitals and critical access hospitals (“CAHs”) are required to provide the MOON beginning no later than March 8, 2017. Continue reading

Hot Off the Presses! CMS Issues Final Overpayment Regulations

On Friday, February 12, 2016, the Centers for Medicare and Medicaid Services (CMS) issued the final overpayment reporting and refunding rule for Medicare Parts A and B overpayments (Final Rule). This Final Rule adopts federal regulations to implement Section 6402(a) of the Affordable Care Act (ACA) enacted in March 2010 that requires the identification, reporting and refunding of certain overpayments from the Medicare and Medicaid programs (the “Overpayment Law”). CMS had previously issued a proposed rule in February 2012 containing regulations to implement the Overpayment Law, which raised several questions and compliance challenges by physicians and other health care providers. Continue reading

Final 2016 Medicare Physician Fee Schedule Released

CMS released on October 30th the final Medicare Physician Fee Schedule for 2016, which contains several payment changes related to physicians services, and a large section finalizing several changes and clarifications to the Stark Law. It will be in the November 16th Federal Register.

Written by: Clay J. Countryman

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HHS’ Office of Inspector General Releases New Report

The HHS’ Office of Inspector General released a report this past Monday indicating that a number of states providing services to Medicaid beneficiaries enrolled in managed care are not complying with the mandatory quarterly reporting requirements.  In response to this study, the OIG recommended that the Center for Medicare and Medicaid Services use its authority to begin withholding federal funds from non-compliant states citing that the data is crucial to Medicaid oversight and the prevention of fraud and abuse.  Although states struggle with capturing the level of quality data needed to complete the reporting requirements, CMS continues to make enforcement a priority.  In response to the report, CMS indicated that it has already issued a notice of proposed rulemaking that would allow for the withholding of federal funds.  For those states who lack the ability to capture the data whether through lack of technological infrastructure or other reasons, this latest policy does not bode well.  For more information, go to:

Written by: Traci S. Thompson


$1,000,000 Fine Imposed for Incorrect In-network Information

In a letter from the Centers for Medicare & Medicaid Services (“CMS”) Medicare Parts C and D Oversight and Enforcement Group issued on April 2, 2015, CMS imposed a civil money penalty of $1,000,000 on health insurer, Aetna, Inc. The $1,000,000 fine was based on Aetna’s “failure to disseminate clear and accurate information regarding the number, mix, and distribution (addresses) of network pharmacies from which enrollees may obtain covered Part D drugs,” which CMS found violated obligations imposed by  42 C.F.R. § 423.128(a)(2) and 42 C.F.R. § 423.509(a)(2). Continue reading

New York Whistleblower Court First to Address What It Means to “Identify” Overpayment under ACA’s 60 Day Rule

For the first time since its enactment as part of the Affordable Care Act (ACA) in 2010, a federal court in a whistleblower action will consider a provision requiring providers to return overpayments within sixty days of when they are “identified.”  The upcoming decision by the United States District Court for the Southern District of New York in U.S. ex rel. Kane v. HealthFirst Inc. et al  will likely be just  the first of many decisions on the subject.   Providers and government regulators are poised for what could prove a lengthy dispute at both the trial and appellate levels around the ACA’s 60 day rule and its interplay with overpayments in the False Claims Act (FCA) context. Continue reading